ACQUISITION  OF  TERRITORY. 


Banger  of  Taking-  the  Pliilippines— Their  Retention  Bodes 

Nothinj?  but  Evil. 


SPEECH 

OK 

HON.  JOSEPH  L.  RAWLINS, 

In  tke  Senate  of  the  United  States, 

Wednefiday,  February  1,  1S9D. 

Mr.  RAWLINS.  I  ask  for  the  reading  of  the  joint  resolution 
iutroclnced  by  the  Senator  from  Missonri  [Mr.  Vest]  . 

The  PRESIDENT  pro  tempore.  The  Chair  lays  before  theSen- 
ate  joint  resolution  No.  191,  v.'hich  will  be  read. 

The  Seoretarj'  read  the  joint  resolution  (S.  R.  191)  declaring 
that  under  the  Conslitulion  of  the  United  States  no  power  is  given 
to  the  Federal  Government  to  acquire  territory  to  be  held  and 
governed  permanently  as  colonies,  as  follows: 

Resolved  b}/  the  Senate  and  House  of  Representatives  of  the  United  States  of 
America  in  Congress  assembled,  Tiiat  under  the  Constitution  of  the  United 
States  uo  power  is  given  to  the  Federal  Government  to  acquire  territory  to 
be  held  and  governed  permanently  as  colonies. 

The  colonial  system  of  European  nations  can  not  be  established  under  our 
present  Constitution,  but  all  territory  acquired  by  the  Government,  except 
such  small  amount  as  may  be  necessary  for  coaling  stations,  correction  of 
boundaries,  and  similar  governmental  xjurposcs,  must  be  acquired  and  gov- 
erned with  the  purpose  of  ultimately  organizing  such  territory  into  States 
suitable  for  admission  into  the  Union. 

Mr.  RAWLINS.  Mr.  President,  the  atmosphere  just  now  seems 
to  be  clouded  with  perplexing  problems.  Everyone,  I  presume, 
is  imbued  with  a  wish  while  adhering  to  justice  to  do  the  best  he 
can  for  his  country.  Heretofore  I  have  not  been  opposed  to  expan- 
sion. This  nation  has  been  one  of  growth  in  population  from 
3,000,000  to  75,000,000  people,  and  in  territory  from  the  shores  of 
the  Atlantic  across  the  continent  and  out  into  the  swelling  waters 
of  the  Pacific.  Millions  of  homes  of  our  sturdy  and  patriotic  peo- 
ple and  magnificent  States  have  been  the  fruits  of  our  expansion. 
Some  of  us  can  not  afford  to  cut  the  limb  which  supports  us  be- 
tween ourselves  and  the  trunk  of  the  tree. 

Territorial  expansion  with  commensurate  extension  of  consti- 
tutional freedom  is  twice  blessed.  It  blesses  them  that  give  and 
them  that  receive.  No  man  can  set  an  artificial  barrier  to  the 
inevitable  progress  of  the  American  people.  So  far  our  progress 
has  been  that  of  freedom  and  not  of  tyranny. 

Mr.  President,  when  our  fathers  christened  this  Republic  they 
gave  it  a  name  which  they  doubtless  deemed  sufficient  to  cover 
all  the  exigencies  and  developments  of  its  future  career.  That 
name  was  the  United  States  of  America.    We  might  stretch  out 

3698 


to  tlie  north  ami  to  the  south  until  wc^  encompassed  the  two  con- 
tinents and  all  the  islands  of  the  Caribheau  Sea.  and  still  we  niiglit 
ai)propi'iately  bear  the  name  which  our  t'ather.s  gave  us. 

Mr.  President,  the  mere  idea  of  cxpansi(.>n,  of  extending  our 
borders,  does  not  alarm  me  so  much  as  some  of  the  startling  doc- 
trines advanced  in  its  justification.  We  ;ire  to-day  confronted 
with  the  question  as  to  wliether  we  shall  change  the  name  of  tlie 
Republic:  and  if  so,  wlnit  slndl  the  new  iianK;  be.  and  wb.at  shall 
it  sj-mbolize?  riliall  it  be  the  United  States  of  America  and  the 
Kingdom  of  tlie  Philii)pip.es  or  shall  it  be  the  Empire  of  America 
and  Asia?  Already  there  are  spectral  visions  of  ihis  in  tlie  politi- 
cal sky. 

It  isnotnccessarj",  in  order  to  up'hoUl  the  rigid  and  power  of  this 
Governnieiit  to  acquire  territory,  to  hold  territorj-,  and  govern 
its  inhabitants,  to  maintain  that  it  is  an  absolute  monarchy  or 
an  imperial  despotism.  The  right  to  acquire  and  liold  property 
is  an_  ordinary  one.  It  belongs  to  every  private  individual.  It  is 
incident  to  the  existence  of  every  corporation,  wlK^ther  public  or 
private,  with  tlie  implied  limitation  that  it  must  be  to  subserv<* 
the  obieL-ts  and  purposes  of  the  corporation.  This  nation  pos- 
sesses that  power.  No  one  disputes  it.  But  it  is  a  pov.-er  not  e.K- 
isting  independent  of  and  apart  from  the  Constitution,  but  is 
derivative  from  the  express  authority  which  that  instrument  con- 
fers upon  the  Federal  Government. 

Tills  being  an  implied  power,  there  are,  of  course,  no  express 
limitations  upon  it,  but  there  is  always  the  implied  one  that  the 
territory  acquired  must  be  to  subserve  some  of  the  great  objects 
and  ends  for  which  the  Government  itself  was  created. 

If  we  should  concede  for  the  purposes  of  the  argument  that  the 
power  to  acquire  and  to  hold  territorj'  was  unlimited,  it  would  by 
no  means  follow  as  an  implication  from  that,  or  as  a  correlative 
proposition,  that  this  nation  would  have  absolute  and  uncontrolled 
power  over  the  inhabitants  which  would  thereby  become  subject 
to  our  jurisdiction.  The  arm  of  this  nation,  so  potent  for  purposes 
of  aggression  or  defense  against  a  foreign  foe,  becomes  impotent 
the  moment  it  is  turned  to  the  oppression  of  any  of  our  people, 
whether  living  in  a  State  or  in  a  Territor3^ 

]\Ir.  President,  there  liave  been  two  schools  of  political  thought 
in  this  countrj'.  Both,  I  understand,  have  agreed  that  the  Con- 
stitution is  the  iieople's  grant  of  jiower  to  the  Government  of  the 
United  States.  They  have  differed  only  as  to  the  latitude  of  the 
construction  of  the  grant.  Both  alike  have  agreed  that  all  iiowor 
not  granted  according  to  the  one  rule  of  interpretation  or  the  other 
and  not  prohibited  by  the  Constitution  and  its  amendments  to  the 
States  is  reserved  to  the  States  and  to  the  people.  But  a  new  school 
of  constitutional  hermeneutics  seems  to  have  arisen  in  the  person 
of  the  distinguished  Senator  from  Connecticut  [Mr.  Platt],  I 
quote  his  exact  language.    He  says: 

I  propose  to  maintain  that  the  T^'nited  States  is  .1  nation;  tliat  asanation  it 
possesses  every  sovereign  power  not  reserved  in  its  Constitution  to  the  States 
or  the  people. 

Mr.  President,  tlie  power  to  define  and  punish  crime,  a  part  of 
the  sovereign  ])olice  power,  is  nowhere  in  the  Constitittion  re- 
served to  tiie  States.  Therefore,  according  to  the  logic  of  the 
Senator,  the  States  do  not  po.ssess  that  ])ower.  The  sovereign 
power  of  eminent  domain  is  nowhere  in  the  Constitution  reserved 
to  the  States.    Tlieref  ore  the  States  do  not  possess  it.     The  power 

3693 


to  create  corporations,  recognized  as  tlie  exercise  of  a  sovereign 
power,  is  nowhere  in  the  Constitution  reserved  to  the  States, 
Therefore  tiie  States  do  not  possess  it.  So  the  proposition  of  the 
Senator  reduces  to  absurdity. 

The  Senator  from  Connecticut  affirms  that  this  is  a  nation;  that 
it  is  possessed  of  plenary  and  absolute  power,  especially  as  relates 
to  all  its  international  relations  and  to  the  territories  which  may 
become  subject  to  its  jurisdiction. 

Mr.  President,  what  is  this  thing  which  the  Senator  calls  a  na- 
tion, which  he  so  idolizes  and  exalts?  It  is  not  the  States  or  the 
people.  They,  according  to  his  proposition,  constitute  no  part  of 
it.  They  possess  only  such  crumbs  of  power  as  may  be  reserved 
to  them  expressly  in  the  Constitution  itself. 

Is  it  the  President,  the  Executive,  vWio  is  the  autocratic  pos- 
sessor of  this  uncontrolled  and  uncontrollable  authority;  or  are  we, 
the  individuals  who  compose  the  Congress  of  the  United  States, 
the  more  than  Forty  Tyrants  whose  crown  is  to  be  placed  upon  a 
long  pole  with  the  command  that  the  people  as  they  pass  by  must 
fall  down  and  worship  it? 

Mr.  President,  it  is  not  in  the  nature  or  essence  of  our  institu- 
tions, and  it  is  an  impossible  conception,  that  this  Goverrimeiit, 
in  any  part  of  its  internal  structure  and  administration,  can  be  a 
bald  absolutism — a  demon  of  omnipotence — to  stalk  forth  any- 
where, either  in  State  or  Territory,  to  oppress  or  destroy. 

It  is  claimed  by  the  Senator  from  Connecticut  and  reiterated  by 
the  Senator  from  Massachusetts  [Mr.  Lodge]  that  the  Constitu- 
tion is  not  operative  except  within  the  limits  or  boundaries  of  the 
States,  and  that  it  can  only  be  made  to  extend,  and  only  does  ex- 
tend, to  the  Territories,  under  and  by  virtue  of  an  act  of  Congress, 
The  Senator  from  Massachusetts  [Mr.  Lodge]  uses  this  language: 

I  believe  that  the  pov'er  of  the  United  States  in  any  Territory  or  posses- 
sion outside  the  limits  of  the  States  themselves  is  ahsolute.  with  the  single 
exception  or  tne  limitation  placed  upon  siicli  outside  possessions  by  the  thir- 
teenth amendment.  Such,  at  all  events,  has  been  the  policy  of  the  United 
States  and  its  course  of  action  iu  practice. 

Secondly,  he  says: 

Without  a  legislative  act  the  Constitution  does  not  extend  to  the  Territo- 
ries or  other  possessions  of  the  United  States  outside  the  limits  of  the  States 
themselves. 

I  refer  to  this  in  order  to  make  examination  of  it  to  see  whether 
there  is  any  proper  foundation  for  these  assertions.  If  it  were 
true  that  the  Constitution  of  the  United  States  is  not  operative  at 
all  beyond  the  limits  of  a  State,  it  proves  too  much  for  the  pur- 
pose of  those  who  assert  it.  If  the  moment  you  step  outside  of  a 
State  the  Constitution  ceases  to  be.  is  a  nonentity,  is  not  to  be  re- 
ferred to,  because  it  is  not  a  vital  and  living  force  there,  what 
follows?  The  447  individuals  who  constitiite  the  Congress  of  the 
United  States,  the  man  who  may  occupy  the  Presidential  chair,  at 
once  cease  to  be  clothed  with  any  official  character  or  possessed 
of  any  power  whatsoever.  No  one  of  the  departments  of  this 
Government,  either  the  executive,  the  .iudicial,  or  the  legislative, 
can  exercise  authority  anywhere,  either  in  the  States  or  the  Ter- 
ritories, except  under  and  by  virtue  of  the  Constitution.  Strike 
away  the  Constitution  and  they  are  emasculated  of  all  authorit}'. 
They  can  not  take  any  authoritative  step.  They  would  be  pos- 
sessed of  no  more  power  than  that  which  pertains  to  every  private 
individual. 

Mr.  President,  it  may  be  that  the  Constitution  in  some  of  its 

8608 


4 

provisions  is  not  self-executing,  but  that  is  no  less  true  in  a  Ter- 
ritory than  in  a  State.  Until  Congress  has  provirlecl  for  tribunals 
inferior  to  the  Supreme  Court  and  clothed  them  with  jurisdiction 
to  enforce  rights  and  to  redress  wrongs,  the  inhabitants  of  the 
State  where  there  has  been  a  violation  of  anj-  of  the  fundamental 
rights  secured  to  them  by  virtue  oi  the  Constitution  may  be  with- 
out opportunity  or  means  of  redress:  it  is  possible  they  may  be 
imprisoned  often  unlawfully,  without  due  process  of  law,  and  be 
without  the  remedj'  of  the  writ  of  habeas  corpus,  but  in  the  mean- 
time, until  Congress  has  performed  the  duty  devolved  upon  it  by 
the  Constitution  and  created  such  tribunals  and  clothed  them 
with  the  necessary  jurisdiction,  are  those  rights  nonexistent?  Cer- 
tainly not.  If  they  are  infringed,  it  is  a  violation  of  right;  and  if 
for  the  time  being  there  is  no  tribunal  competent  to  grant  redress, 
as  soon  as  such  tribunal  is  created  and  clothed  with  the  necessary 
power,  the  in;lividual  whose  right  is  intringcd  may  go  into  court 
and  seek  the  form  of  redress  which  may  then  bo  possible. 

Mr.  MASC^N".     Will  the  Senator  yield  for  a  (luestion? 

The  PRESIDENT  pro  tempore.  Does  the  Senator  from  Utah 
3'ield  to  the  Senator  from  lUinoioV 

Mr.  RAWLINS.     I  yield. 

Mr.  MASON.  Has  the  Senator  discussed  at  all  the  statute  which 
covers,  or  evidently  was  intended  to  ccver,  the  suggestion  he  has 
been  making?    Section  1077  of  the  Revised  Statutes  provides  that — 

All  persons  — 

It  does  not  say  all  citizens,  but — 

All  persons  within  the  jurisdiction  of  the  United  St.ites  shall  have  the 
franio  ri^lit  in  every  State  and  Territory  to  mako  .and  enforeo  contracts,  to 
sue,  1)0  i)artics,  tfivc  evidence,  and  to  the  full  and  eiiual  benefit  of  all  laws  and 
proceedings  for  the  security  of  persons  and  property  as  is  enjoyed  by  white 
citizens,  and  shall  bo  subject  to  like  pnnislnnont,  ijains,  penalties,  taxes, 
licenses,  and  e.Kacliuns  of  every  kind,  and  to  no  other. 

Would  not  that  statute  extend  all  the  benefits  of  the  Constitution 
to  all  persons  who  are  within  the  jurisdiction  of  the  United  States, 
even  though  tlie  machinery  for  giving  the  constitutional  benefit 
had  not  been  established? 

Mr.  RAWLINS.  Mr.  President,  I  am  not  now  considering  the 
question  of  the  necessity  or  tlie  force  of  a  statute  of  Congress.  I 
am  considering  the  question  as  to  the  scope  and  operation  of  the 
Constitution  itself.  The  proposition  I  make  is  that  in  the  States 
some  of  the  provisions  of  the  Constitution  may  not  be  self-execut- 
ing, but  that  this  is  no  more  the  case  in  the  Territories  than  in  the 
States. 

Turning  now  to  the  condition  in  a  Territory  where  the  territory 
is  acquired  from  another  government,  all  municipal  laws  and  regu- 
lations in  force  at  the  time  of  the  acquisition  continue  to  be  in 
force  after  that  time;  that  is,  until  they  are  superseded  by  com- 
petent legislation,  subject,  however,  to  this  qualification,  that 
they  must  be  so  modified  as  to  conform  to  the  fundamental  prin- 
ciples established  by  the  constitution  of  the  Government  succeed- 
ing to  the  sovereignty  and  the  public  policies  which  grow  out  of 
such  principles.  That  was  the  rule  which  was  applied  with  re- 
spect to  the  Louisiana  purchase  and  with  respect  to  the  acquisi- 
tion from  Mexico. 

During  the  interregnum,  and  from  the  moment  the  territory  i.s 
acquired,  the  Constituti(m  of  the  United  States  and  all  the  provi- 
sions of  that  instrument,  in  so  far  as  they  are  not  essentially 
308 


uusuited  and  inapplicable  to  tiie  condition  of  a  territory,  become 
proprio  vigore  applicable  thereto  and  control  all  the  municipal 
laws  and  regulations  which  may  have  been  in  existence  and  may 
have  controlled  the  people  up  to  that  time. 

Mr.  President,  it  is  true  tliat  Congress  may  temporarily  delay 
or  refuse  to  perform  its  duty  of  providing  a  form  of  government 
and  judicial  tribunals  in  a  Territory,  as  it  might  refuse  to  perform 
its  constitutional  duty  in  providing  for  courts  inferior  to  the 
Supreme  Court  withiu  the  borders  of  a  State.  But  we  are  not  to 
indulge  in  an}' presumption  that  Congress  will  neglect  to  perform 
any  duty  which  devolves  upon  it  under  and  by  virtue  of  the  author- 
ity conferred  by  the  Constitution. 

Let  us  proceed  one  step  farther  in  this  matter.  There  are  cer- 
tain provisions  of  the  Constitution  which  in  their  nature  are  not 
and  can  not  be  made  applicable  to  a  Territory.  The  framers  of 
the  Constitution  contemplated  that  the  United  States  would  ac- 
quire and  hold  territory,  and  that  such  territory  would  be  incor- 
porated into  the  Union  as  States  upon  an  equal  footing  with  the 
original  States  in  due  course  of  time.  It  was  presumed  that  the 
Territorial  situation  would  in  every  instance  be  but  temporary. 

Allusion  has  been  made  to  some  decisions  of  the  Supreme  Court 
of  the  United  States  and  the  practice  of  the  Govei-nment  that  the 
Territorial  courts  provided  for  by  legislative  enactment  are  not 
constitutional  courts;  that  they  are  not  courts  inferior  to  the  Su- 
preme Coiirt;  that  the  judges  of  those  courts,  when  appointed, 
do  not  hold  their  offices  during  life  or  good  behavior.  That  pro- 
vision is  unsuited  to  the  situation  in  a  Territory,  because  the 
framers  of  the  Constitution,  as  a  part  of  the  interpretation  of  that 
instrument,  contemplated  that  the  Territorial  condition  would  in 
every  instance  be  temporary.  The  inferior  tribunals  referred  to 
were  designed  to  be  permanent,  and  therefore  the  tenure  of  the 
oiJice  of  the  judges  appointed  was  to  be  during  life  or  good  be- 
havior. That  provision  was  unsuited  to  the  condition  which  the 
framers  of  the.  Constitution  contemplated  would  exist  in  respect 
to  the  Territories. 

Mr.  President,  I  have  asserted  the  proposition  that  no  author- 
ity can  be  exercised  by  any  branch  or  department  of  this  Govern- 
ment in  the  Territories  except  under  and  by  virtue  of  the  Consti- 
tution. Take  away  the  Constitution,  and  who  is  it  that  possesses 
this  absolute  control  of  the  Territories?  Is  it  Congress?  But  we 
are  met  at  the  very  threshold  with  the  question:  What  is  Con- 
gress? We  have  no  means  of  ascertaining  its  identity  or  charac- 
teristics without  referring  to  the  Constitution.  How  shall  it  man- 
ifest or  express  its  legislative  will  in  respect  to  the  Territories  in 
accordance  with  the  methods  prescribed  in  the  Constitution  or 
without  any  regard  to  them? 

Is  it  necessary  in  order  to  give  validity  to  the  attempt  to  exer- 
cise legislative  authority,  to  obtain  the  concurrence  of  the  Execu- 
tive; and  if  so,  why,  except  that  the  Constitution  is  in  force  in 
respect  to  that  act,  and  defines  and  limits  and  qualifies  the  power 
of  Congress?  If  the  act  of  Congress  is  invalid  unless  it  receives 
the  concurrence  of  the  Executive  and  is  passed  in  accordance  with 
the  forms  of  procedure  which  that  instrument  prescribes,  must  it 
not  also  be  in  conformity  with  all  other  limitations  upon  the  exer- 
cise of  Congressional  authority? 

There  is  one  case  in  the  Supreme  Court,  which  arose  in  the  Dis- 
trict of  Columbia,  which  is  an  apt  illustration  of  the  contention  1 
3693 


fiTO  now  maldng.  The  House  of  Representatives  made  an  order. 
Kilbonvn  refused  to  obey  tliat  order.  The  House  of  Representa- 
tives passed  a  resolution  directing  its  Sergeant-at-Arnis  to  arrest 
and  detain  Kilbouru  tor  a  viohition  of  the  order.  That  order  was 
complied  witli.  and  Kilbourn  apjjealed  to  the  court.  He  claimed 
tliat  no  authority  had  been  couferied  upon  the  House  of  Repre- 
sentatives by  the  Constitution  to  make  the  original  order;  that  the 
order  was  invalid;  that  all  tlie  proceedings  based  upon  it  were 
ecjually  invalid,  :uid  that  liis  imprisonment  was  unlawful.  He  was 
discharged  upon  a  writ  of  habeas  corpus.  Afterwards  Kilbouru 
sued  tlie  h-ergeant-at-Arms  of  the  House  of  Representatives  and 
certain  members  of  that  body  for  damages  resulting  to  him  by 
reason  of  his  unlawful  imprisonment,  and  he  recovered  a  verdict 
for  a  very  large  amount,  which  was  carried  to  the  Supreme  Court 
of  the  United  States,  and  there  affirmed.  The  unanimous  opinion 
which  was  delivered  in  that  case  is  an  instructive  one. 

Tlie  court  said  that  the  House  of  Representatives  is  not  pos- 
ses.sed  with  the  omnipotent  powers  of  the  Hou.se  of  Parliament  of 
Great  Britain,  but  possesses  only  such  powers  as  have  been  ex- 
pressly conferred  upon  it  by  the  Constitution  or  such  as  areneces- 
sarj'  to  carry  into  effect  the  powers  which  have  been  granted. 
The  court  searched  the  Constitution  and  found  that  the  authority 
which  the  House  of  Representatives  undertook  to  exercise  in  that 
case  did  not  exist.  They  therefore  held  that  the  irapriaonment  of 
Kilbourn  was  unlawful  and  that  not  only  the  Sergeant-at-Arms, 
the  officer  of  the  House,  but  members  of  the  House  aiding  and 
abetting  in  the  unlawful  imprisonment  wci'e  liable  for  the  dam- 
ages which  Kilbourn  sustained  by  reason  of  his  imprisonment. 

Mr.  President,  extend  that  principle  to  the  two  Houses  of  Con- 
gress, include,  if  you  please,  the  Executive,  api)ly  the  doctrine  to 
him,  and  make  it  applicable  to  the  District  of  Columbia  or  to  any 
one  of  the  Territories.  Suppose  that  both  Houses  of  Congress 
passed  an  act,  duly  approved  by  the  President  according  to  the 
metliod  prescribed  in  the  Constitution,  directing  the  imprison- 
ment of  some  man  anywhere  within  otir  national  domain  who 
owes  us  allegiance  and  who  is  entitled  to  the  reciprocal  benefit  of 
the  equal  and  just  protection  of  our  laws  and  the  safeguards  of 
our  liberty,  and  he  should  be  imprisoned  in  accordance  with  that 
act,  and  the  case  was  brought  to  our  highest  tribunal  and  a  search 
made  for  the  authority  conferred  upon  Congress  to  make  that 
order,  to  pass  that  act,  and  no  such  authority  was  found  or  im- 
plied as  incidental  to  the  existence  of  any  authority  expressly 
confei'red  in  that  instrument,  what  would  follow? 

The  liability  of  those  causing  the  imprisonment,  according  to 
the  decision  of  the  Supreme  Court  of  the  United  States,  for  the 
damages  which  that  person  would  suffer.  There  is  one  step  fur- 
ther. Suppose  a  person  were  executed  by  command  of  the  Presi- 
dent without  authority  derivable  anywhere  or  by  any  means  from 
our  Constitution,  would  not  the  President,  if  such  act  were  de- 
fined and  recognized  in  the  municipal  law  applicable  to  the  Ter- 
ritorj^  as  such  a  crime,  be  guilty  of  murder? 

Mr.  President,  we  can  not  take  one  step  anywhere  within  the 
limits  of  our  national  domain  as  affecting  tiie  rights  of  the  meanest 
of  any  of  the  inhabitants  dwelling  therein  owing  ns  allegiance 
except  under  and  by  virtue  of  the  Constitution.  No  matter  how 
many  of  the  departments  participate  in  that  act,  they  stand  upor^ 
the  footing  of  more  intruders,  marauders,  and  pirates  when  they 

3C98 


infringe  npon  the  right,  the  liberty,  or  the  property  of  the  inhab- 
itants anywhere  witliin  car  nationiil  domain  unless  in  the  exercise 
of  power  which  has  been  con  (erred  npon  them  bj^  tlie  fundamental 
law  of  our  land.  Therefore  I  state  that  to  prove  that  the  Consti- 
tution is  only  operative  within  the  States  proves  too  much  for  the 
purposes  of  those  who  assert  it. 

Now,  as  to  the  proposition  that  the  Constitution  can  only  ap- 
ply to  the  Territories  if  extended  there  by  an  act  of  Congress, 
that,  when  we  analyze  it,  presents  a  most  peculiar  situation.  An 
act  of  Congress  is  an  insufficient  basis  upon  which  to  rest  the 
Constitution.  The  Constitution  can  not  rest  upon  an  act  of  Con- 
gress, but  an  act  of  Congress  must  rest  upon  the  Constitution, 
and  in  every  instance  must  depend  for  its  vabdity  upon  the  au- 
tliority  which  that  instrument  confers  upon  Congress  to  enact  it. 

What  is  the  proposition,  when  it  is  stated  in  its  baldest  form, 
which  is  presented  here  to  justify  the  procedure  which  is  proposed 
in  regard  to  the  Philippines  by  some  Senators?  The  proposition 
is  that  the  Constitution  can  not  be  in  force  in  the  Territories  except 
by  virtue  of  an  act  of  Congress.  It  is  equally  certain  that  an  act 
of  Congress  can  not  be  in  force  in  the  Territories  except  by  virtue 
of  the  Constitution.     In  logic  that  is  what  is  called  a  vicious  circle. 

The  Senator  from  Massachusetts  [Mr.  Lodge],  stating  the  prop- 
ositions which  he  did — namely,  that  the  Constitution  had  no  op- 
erative force  out  of  the  States  and  that  it  could  onlj-  be  made 
applicable  by  virtue  of  an  act  of  Congress — said  that  such  had 
been  the  course  and  practice  of  this  Government.  No  such  i^rece- 
dent  and  no  such  practice  have  been  presented  to  us.  Every  prece- 
dent, whether  legislative  or  judicial,  is  against  the  Senator's  con- 
tention. All  my  life  has  been  spent  in  a  Territory.  For  twenty- 
five  years  I  have  practiced  law  there,  and  never  before  did  I  hear 
it  seriously  contended  that  the  safeguards  of  the  Constitution 
were  not  a  vital  and  living  force  anywhere  in  the  Territories. 
Time  and  again  1  have  searched  the  Constitution  to  find  safe- 
guards to  protect  the  rights  of  my  clients,  citizens  of  a  Territory, 
and  manj'  cases  I  have  carried  to  the  highest  judicial  tribunal  in 
this  land,  and  have  been  able  successfully  to  assert  and  maintain 
those  rights  in  that  august  tribunal. 

I  say  that  there  never  has  been  an  opinion  delivered  by  the  Su- 
preme Court,  there  has  never  been  a  hint  or  suggestion  by  any 
judge  who  has  ever  occupied  a  place  in  that  august  tribunal  from 
the  time  of  its  creation  until  the  present  hour,  which  has  ever  as- 
serted that  the  Constitution  is  not  proprio  vigore  applicable  to  the 
Territories,  and  does  not  as  much  safeguard,  in  those  provisions 
relating  to  civil  and  individual  rights,  the  citizens  of  the  Territory 
as  the  citizens  of  the  State.  Let  us  see.  I  am  indebted  to  the 
Senator  from  Colorado  [Mr.  Teller]  for  one  precedent  of  legisla- 
tive practice  which  is,  to  my  mind,  exceedingly  significant. 

The  ordinance  relating  to  the  Northwest  Territory  was  passed  in 
the  year  1787,  before  the  Constitution  of  the  United  States  was 
framed  and  ratiiied.  The  Constitution  was  ratified  in  1789.  If  the 
Constitutionthus  adopted  and  ratified— the  prior  municipal  regula- 
tions continuing  in  force  until  superseded,  according  to  every 
principle  of  public  and  international  law,  subject  to  the  qualifica- 
tions which  I  have  previously  stated— if  the  Constitution  of  the 
United  States  did  not  become  by  virtue  of  its  ratification  operative 
in  the  Northwest  Territory,  then  tlie  ordinance  of  1787,  although 
inconsistent  with  the  provisions  of  that  instrument,  would  have 
3C93 


8 

continued  in  force  as  it  was  orisiinally  enacted,  and  there  would 
have  been  no  necessity  to  change  or  modify  it  in  order  to  conform 
to  the  limitations  and  provisions  of  the  Constitution. 

On  August  7,  1(80,  tha  very  year  in  wliich  the  Constitution  of 
the  United  States  was  r;ititied,  Congress,  composed  of  men  who 
participated  in  the  framing  of  that  instrument,  deemed  it  neces- 
sary to  pass  this  act,  entitled  '-An  act  to  provide  lor  the  govern- 
ment of  the  territory  northwest  of  the  Ohio  River,"  containing 
this  provision,  which  I  quote: 

Whereas,  ill  order  that  the  ordinance  of  the  tJuited  States  in  Conjfress  as- 
seiiihled  for  the  goverinnpiit  of  the  territory  northwest  of  the  river  Ohio 
may  continue  to  have  full  effect,  it  is  reiiuisite — 

Note  the  words— 

that  certain  provisions  shoukl  he  made  so  as  to  adapt  the  same  to  the  present 
Coustitutiou  of  the  United  titntcs.—tltaliitcs  at  Lurgc,  vohuno  1,  pages  JJO-.W. 

No  such  act  solemnly  passed  as  that  could  have  been  passed  by 
the  men  who  participated  in  framing  and  adopting  the  Constitu- 
tion of  our  country,  unless  they  believed  tliat  that  instrument  and 
all  its  provisions  not  utterly  unsuited  to  the  condition  of  a  Terri- 
tory would  be  proprio  vigore  applicable  thereto,  and  it  would  be 
necessary  to  make  any  legislation  previously  enacted  or  subse- 
quently enacted  conform  to  the  provisions  of  that  instrument. 
Whatever  may  have  been  done  after  that  is  immaterial,  especially 
by  those  who  did  not  participate  in  the  framing  of  that  instru- 
ment. This  is  a  cotemporaneous  declaration,  an  interpretation  of 
the  Constitution,  and  asserting  the  fact  that  that  instrument  was 
originally  intended  to  apply  to  the  Territories  and  not  to  be  con- 
fined in  its  operations  within  the  limits  of  the  States.  There  is 
nothing  in  Congressional  legislation  subsequent  to  that  time 
which  is  inconsistent  with  the  interpretation  to  which  I  have  now 
alluded. 

Turn  to  the  Supreme  Court,  Mr.  President.  At  this  point  I  may 
be  pardoned  if  I  briefly  allude  to  the  decisions  from  the  first,  con- 
stituting a  part  of  the  history  of  that  tribunal  and  all  its  declara- 
tions from  the  beginning  until  now  on  this  question.  In  4  Wheaton 
(Loughborough  vs.  Blake)  Chief  Justice  Marshall,  delivering  the 
opinion  of  the  court,  said: 

The  eighth  section  of  the  first  article  gives  to  Congress  the  "  power  to  lay 
and  collect  taxes,  duties,  imposts,  and  excises"  for  the  purposes  thereinafter 
mentioned.  This  grant  is  general,  without  limitation  as  to  place.  It  conse- 
quently extends  to  all  places  over  which  the  Governinent  extends.  If  this 
could  be  doubted,  the  doubt  is  removed  by  the  subsequent  words,  which  mod- 
ify the  grant.  Those  words  are,  "but  all  duties,  imposts,  and  excises  shall 
be  uniform  throughout  the  United  States."  It  will  not  be  contended  that  the 
modification  of  tlio  power  extends  to  places  to  which  the  power  itself  does 
not  extend. 

The  power,  then,  to  lay  and  collect  duties,  imposts,  and  excises  may  be 
exercised,  and  must  be  e.xerci.sod,  throughout  the  United  States.  Does  this 
term  designate  the  whole  or  any  particular  portion  of  the  American  empire? 
Certainly  this  question  can  admit  of  but  one  answer.  It  is  the  name  given  to 
our  great  Republic,  which  is  composed  of  States  and  Territories.  The  Dis- 
trict of  Columbia  or  the  territory  west  of  the  Missouri  is  not  less  within  the 
United  States  than  Maryland  or  Pennsylvania;  and  it  is  not  less  necessary, 
on  the  principles  of  our  Constitution,  that  uniformity  in  the  imposition  of 
imposts,  duties,  and  excises  should  be  observed  in  the  one  than  the  other. 
Since,  then,  the  power  to  lay  and  collect  taxes,  wliich  includes  direct  taxes, 
is  obviously  coextensive  with  the  power  to  lay  and  collect  duties,  imposts, 
and  excises,  and  since  the  latter  extends  throughout  the  United  States,  it 
follows  that  the  power  to  impose  direct  taxes  also  extends  throughout  the 
United  States. 

I  next  call  attention  to  the  case  of  Webster  vs.  Reid  (11  Howard, 
page  400),  which  arose  in  the  Territory  of  Iowa.     The  defendant 

3C'J8 


in  error.  Held,  recovered  .iuagment  against  Webster  for  a  quartoi 
section  of  laiKl.  Tlie  validity  of  the  nudgment  depended  upon  the 
re-ularity  of  proceedings  under  a  statute  ot  saul  Territory  Tiie 
.ludgment  in  t^vor  of  Reid  was  held  invalid  by  the  bupreine  Court. 
in  this  case  Justice  McLean  said: 

Bv  the  seventh  article  of  the  amendments  of  the  Constitution  it  is  declared: 
"In^snUs  at  conunon  law  where  the  value  n,  controversy  shaUe^^^^^^ 
flip  vi>lir  of  trial  bv  iury  shall  be  preserved.       -    "     ■     iiic  [leniroiiaij  aou 
nndlfwhche  above  pr..needing  was  had  prohibited  the  trial  by  3'n-y  m 
matters  I't  fact  in  which  the  suits  were  founded.    lu  this  respect  the  act  was 

'°In  the  case  of  Reynolds  vs.  The  United  States  C 98  U.  S    162) 
which  arose  in  the  Territory  of  Utah,  Reynolds  claimed  that  lus 
religious  rights  had  been  infringed  in  his  conviction.     In  the 
opinion  of  the  Supreme  Court  in  this  case  Chief  Justice  Waite 
uses  this  language: 

Coneress  can  not  pass  a  law  for  the  government  of  the  Territories  which 
..b-rnnf-oMbit  the  free  exercise  of  religion.  The  first  amendment  to  the  Con- 
'?iU  t?on  ex   reS  forl^^^^^^  legislation.    Religious  freedom  is  guaran- 

teed everywhere  throughout  the  United  States  so  far  as  Congressional  leg- 
islation is  concerned. 
Mr  GEAR.     Is  that  the  Iowa  case? 
Mr.  RAWLINS.    No. 

Mr  GEAR.     I  thought  the  Senator  was  quoting  the  Iowa  ca!,e. 
Mr"  TELLER.     I  did  not  want  to  interrupt  the  Senator  until 
he  was  through  with  that  case,  but  I  now  ask  if  tnat  is  not  the 
Utah  case? 
Mr.  RAWLINS.    Yes.  .       .    .,     n     .  ..    .  n^. 

Mr  TELLER  I  want  to  call  attention  to  the  fact  that  Cou- 
gress'in  1850.  in  the  act  to  establish  a  Territorial  government  tor 
Utah,  used  this  language: 

That  the  Constitution  and  laws  of  the  United  states  are  hereby  cxt^^^^^^^ 
over  and  declared  to  be  in  force  in  said  Territory  of  Utah  so  fai  as  the  same 
or  any  provision  thereof  may  be  applicable. 

Mr  RAWLINS.  I  was  not  unaware  of  that,  Mr.  President. 
There  has  been  in  most  of  the  organic  acts  pertaining  to  the  Ter- 
ritories such  a  provision.  That  proves  nothing  against  the  con- 
tention which  I  have  made.  It  simply  discloses  that  the  Con- 
cresses  which  passed  these  acts,  if  there  was  any  doubt  upon 
the  question-as  there  had  been  some  expressions  by  such  men  as 
Daniel  Webster  and  others  in  Congress,  but  never  by  the  Supreme 
Court  of  the  United  States— that  the  Constitution  was  applicable 
to  a  Territory,  desired,  so  far  as  they  had  the  power  to  do  so,  to 
remove  that  doubt.  It  was  an  indication  of  the  sentiment  which 
had  its  inception  at  the  time  of  the  adoption  of  the  Constitution 
and  which  has  continued  down  to  the  present,  that  it  there  was 
or  could  be  any  doubt  upon  that  ground,  Congress  intended,  so 
far  as  possible,  to  remove  that  doubt;  but  that  is  no  argument 
that  it  was  not  in  the  minds  of  the  framers  of  the  Constitution  that 
the  safeguards  of  that  instrument  should  be  equally  applicable  to 
the  Territories  as  to  the  States.  ^     .,    .  -i.. , 

Mr  TELLER.  I  should  like  to  say  to  the  Senator  that  it  he  can 
cite  any  debate  in  Congress  previous  to  18'^8  where  there  was  a  sug- 
gestion that  the  Constitution  of  the  United  States  went  by  its  own 
force  into  the  Territories,  I  shall  be  very  much  obliged  to  him;  but 
I  am  sure  it  can  not  be  found.  ,       ,       .^   ,  i. 

Mr.  RAWLINS.  Mr.  President,  I  have  already  cited  an  act 
passed  August  7,  liSD, 

o098 


10 

Mr.  TELLER.  That  was  for  the  purpose  of  giving  to  those  peo- 
ple the  benefit  of  the  Constitution. 

Mr.  RAWLINS.  I  interpret  that  act  according  to  its  language. 
The  men  who  framed  the  Constitution  said  it  %vas  necessar}-,  in 
order  that  that  act  might  be  enforced  in  the  Territories,  to  make  it 
conform  to  the  Constitution.  That  was  the  substance  of  their  dec- 
laration. 

Mr.  TELLER.  Yes:  but  it  was  to  provide  that  the  governor  of 
the  Territory,  instead  of  reporting  to  the  Confederation,  should 
report  to  Congress.  That  is  not  an  argument  in  favor  of  what 
the  Senator  suggests,  for  subsequent  to  that  time,  by  several  stat- 
utes, they  extended  the  Constitution  into  the  new  Territories. 

Mr.  RAWLINS.  ^Yell,  I  shall  submit  the  language  itself  for 
its  own  interpretation.  I  do  not  think  it  can  be  made  clearer  by 
anything  that  either  the  Senator  or  I  can  say  about  it. 

ftlr.  President,  I  next  refer  to  the  case  of  Murphy  ?;.s.  Ramsey 
(114  U.  S.  Reports,  page  41).  Justice  Matthews,  in  delivering  the 
opinion  of  the  court  in  that  case,  said: 

Tlie  parsonal  and  civil  i-ight.s  of  tbo  inhabitants  of  the  Territories  arc  so- 
CTired  to  tliem,  as  to  other  citizens,  by  tlie  principles  of  constitutional  liberty 
wliicli  restrain  all  the  accencies  of  Government,  State  and  national.  Their 
political  rights  are  franchises  which  they  hold  as  prvileges  in  the  legislative 
discretion  of  the  Congress  of  the  United  States. 

It  is  true  that  the  Constitution  does  not  impart  political  priv- 
ileges, the  franchise  of  voting,  or  holding  office  to  the  inhabitants 
of  a  Territory,  not  because  it  is  not  applicable  to  the  Territory, 
bttt  becatise  that  instrtiment  does  not  impart  sttch  rights  any- 
where, either  in  a  State  or  in  a  Territory,  as  held  by  the  Supreme 
Court  of  the  United  States  in  the  case  of  Minor  vs.  Happersett,  21 
Wallace. 

Mr.  President,  ex  parte  Neilsen  (131  U.  S.)  is  an  interesting  case. 
Neilsen  sought  relief  by  the  writ  of  habeas  corpus  from  second 
trial  and  punishment  for  the  same  offense  of  whicli  he  had  been 
previously  convicted.  Mr.  Justice  Bradley  delivered  the  opinion 
of  the  court.  I  desire  to  call  attention  to  the  fact  that  this  opin- 
ion was  delivered  by  Mr.  Justice  Bradley,  because  some  Senators 
have  asserted  that  that  distinguished  .judge  in  another  case  made 
an  intimation  that  the  Constittition  was  not  in  force  in  or  appli- 
cable to  a  Territory.  This  distinguished  judge  in  this  case  used 
this  language,  page  183: 

In  the  present  case  the  ground  for  the  habeas  corpus  was  not  the  invalidity 
of  an  act  of  Congress  under  whicli  the  defendant  was  indicted,  but  a  second 
prosecution  and  trial  of  the  same  offense  contrarjr  to  an  exyn-ess  provision  of 
the  Constitution.  In  other  words,  the  constitutional  immunity  of  the  de- 
fendant was  violated  by  the  second  trial  and  judgment. 

A  similar  case  is  that  of  ex  parte  Snow,  reported  in  120  U.  S., 
274,  in  which  the  opinion  was  delivered  by  Mr.  Justice  Blatch- 
ford. 

In  the  case  of  the  Mormon  Church  vs.  United  States  (13G  U.  S., 
44)  Justice  Bradley,  in  delivering  the  opinion  of  the  court,  says: 

Doubtless  Congress  in  legislating  for  the  Territories  would  be  subject  to 
those  fundamental  limitations  in  favor  of  jiersonal  rights  which  ai"e  found  in 
the  Constitution  and  amendments,  etc. 

In  Callan  vs.  Wilson  (127  U.  S.,  540),  which  arose  in  the  Dis- 
trict of  Columbia,  it  was  held  that  the  people  of  the  District  can 
not  be  deprived  of  any  of  the  constitutional  guarantees  of  life, 
liberty,  and  property. 
SG98 


11 

"Wo  can  not  think— 

Siiid  the  Supreme  Court- 
that  the  paople  of  this  District  Lave  in  that  regard  less  rights  than  tliose 
accorded  to  the  people  of  the  Territories  ot  the  Lnited  States. 

In  American  Publishing  Company  vs.  Fislier  (16G  U.  S.,  4G4) 
it  was  held  that  in  the  Territory  of  Utah  parties  to  a  suit  at  com- 
mon hiw  where  the  vahie  in  controversy  shall  exceed  S'30  can  not 
he  denied  the  right  of  a  unanimous  verdict  of  twelve  men  under 
the  seventh  amendment  of  the  Constitution.  _ 

In  Sprino-ville  rs.  Thomas  (ICG  U.  S.,  TOT),  a  later  decision  than 
the  above,  and  involving  the  same  question,  m  which  it  was 
elaborately  contended  by  counsel  that  the  provisions  of  the  Con- 
stitution were  not  applicable  to  the  Territories.  Chiet  Justice 
Fuller  in  delivering  the  opinion  of  the  court  uses  this  language, 
to  which  I  invite  the  attention  of  Senators: 

In  our  opinion  tlie  seventh  amendment  secured  unanimity  in  finding  .a 
verdict  as  an  essential  feature  of  a  trial  by  jury  in  common-law  cases,  and 
the  act  of  Pongress  could  not  impart  the  power  to  change  the  constitutional 
rule,  and  could  not  be  construed  as  attempting  to  do  so. 

Mr  President,  if  the  Constitution  applicable  to  a  Territory  de- 
pends upon  the  legislative  act  of  Congress,  it  has  not  the  dignity 
of  the  Constitution,  but  stands  upon  the  level  of  the  act  of  Con- 
"•ress  itself,  and  is  subject  to  change,  modification,  or  repeal;  and 
the  Supreme  Court,  referring  to  the  numerous  cases  which  had 
previously  been  before  that  tribunal,  expres.sly  here  declared,  m 
the  very  latest  decision,  that  Congress  can  not  impart  vahdity  to 
any  act  which  will  deprive  the  inhabitants  of  a  Territory  of  the 
right  of  trial  by  jury  as  provided  in  the  Constitution. 

In  Thompson  r.s.  The  State  of  Utah  (ITO  U.  S.,  346)  the  ques- 
tion was  whether  under  the  provision  of  the  Constitution  forbid- 
ding Congress  to  pass  any  bill  of  attainder  or  ex  post  facto  law 
the  rio-ht  of  trial  by  jury  of  twelve  men  to  which  the  defendant 
was  entitled  in  the  Territory  of  Utah  at  the  time  when  the  offense 
charged  was  committed  could  be  subsequently  taken  away  by  an 
act  authorizing  his  trial  by  a  jury  composed  of  only  eight  men. 
The  Supreme  Court  held  not.  Justice  Harlan,  in  dehvenng  the 
opinion  of  the  court,  says: 

That  the  provisions  of  the  Constitution  of  the  United  States  relating  to 
the  right  of  trial  by  .iury  in  suits  at  common  law  apply  to  the  rerntoricb  o£ 
the  United  States  is  no  longer  an  open  question. 

Further,  the  court  say: 

When  Thompson's  crime  was  committed  (in  the  Territory)  it  was  his  con- 
stitutional right  to  demand  that  his  liberty  .should  not  be  taken  from  him 
except  by  the  joint  action  of  the  court  and  the  unanimous  verdict  of  a  jury 
of  twelvl  perions.  To  hold  that  a  State  could  deprive  him  of  his  liberty  by 
the  concurrent  action  of  a  court  and  eight  jurors  would  recognize  the  pov.'er 
of  the  State  not  only  to  do  what  the  United  States  lu  respect  of  Thompson  s 
crime  could  not  at  any  time  have  done  liy  legislation,  but  to  take  from  t ho 
accused  a  substantial  right  belonging  to  him  wbeii  the  offense  was  committed. 

There  is  a  distinct  and  unequivocal  declaration  that  Congress 
could  not,  at  any  time,  take  from  one  charged  with  crime  in  a 
Territory,  at  any  time  during  the  Territorial  condition,  or  deprive 
him  of  that  constitutional  right.     Such  are  the  precedents. 

Mr.  President,  there  is  another  phase  of  this  question.  If  it  is 
po.ssible  to  establish  anything  by  repeated  decisions  of  the  highest 
tribunal  of  this  land,  if  it  is  possible  to  prove  any  proposition, 
which  by  logic  and  reasoning  amounts  to  a  demonstration,  it 
must  follow  that  the  Constitution,  in  all  the  provisions  of  that  m- 


12 

strmnent  not  unsuited  to  the  conditiou  in  a  Territory,  there  safe- 
guards all  the  rights  of  all  the  inhabitants  of  the  Territory  owing 
allegiance  to  this  Government,  as  much  as  it  safeguards  the  cor- 
responding rights  of  the  people  of  the  States. 

Tiiere  is  another  interesting  case  to  which  I  desire  to  call  the 
attention  of  the  Senate.  It  occurred  in  troublous  times,  when  men 
were  fevei'ish  and  restive  under  constitutional  restraints,  as  some 
of  them  seem  to  be  to-day.  During  the  trouble  between  the  States 
Milligan.  in  the  State  of  Indiana,  was  arrested  and  arraigned  be- 
fore a  military  tribunal,  and  was  denied  the  right  of  due  process 
of  law  or  the  intervention  of  a  jury  before  he  could  be  found 
guilty  of  the  offense  with  which  he  was  charged.  They  were  pro- 
ceeding post  haste  to  execiite  him,  illustrative  of  the  fact  in  contra- 
vention of  what  the  Senator  from  Massachusetts  [Mr.  Lodge] 
said  the  other  day,  that  the  American  people  are  under  all  circum- 
stances too  .inst  ever  to  commit  a  wrong.  They  were  proceeding 
to  execute  him  without  any  authority  whatever,  and  the  su])reme 
tribunal  was  appealed  to  to  prevent  that  crime  from  being  com- 
mitted. 

The  Supreme  Court  discharged  him.  They  held  that  as  to  a 
State  or  Territory  in  which  there  was  no  invasion  or  rebellion  and 
as  to  a  person  not  a  prisoner  of  war  and  not  in  the  military  or 
naval  service  Congress  could  not  clothe  a  military  commission 
with  the  power  to  try  and  convict  and  execute  him;  and  as  the 
same  provisions  which  safeguarded  Milligan  in  the  State  of  Indi- 
ana apply  equally  everywhere  within  the  limits  of  our  dominion 
where  the  jurisdiction  of  our  Government  extends,  under  thelijn- 
itations  and  the  qualifications  of  the  Constitution,  the  same  prni- 
ciples  which  were  applicable  to  Milligan  and  Indiana  will  bo 
equally  applicable  under  like  circumstances  to  the  Philippine 
Islands  if  we  retain  them.  But  there  is  some  language  in  this 
opinion  which  I  desire  to  quote. 

Mv.  PLATT  of  Connecticut.  May  I  interrupt  the  Senator  from 
Utah? 

Mr.  RAWLINS.     Certainly. 

Mr.  PLATT  of  Connecticut.  Where  under  the  Constitution  is 
it  provided  that  a  person  who  is  properly  tried  before  a  court- 
martial  is  not  entitled  to  a  trial  by  jury?  I  suppose  the  reason 
why  a  citizen  of  the  United  States  is  not  entitled  to  trial  by  jury 
by  a  court-martial  is  because  the  Constitution  says  that  Congress 
may  make  laws  for  the  government  of  the  Army  and  Navy  just 
as  it  says  it  may  make  all  needful  rules  and  regulations  for  the 
government  of  territory. 

Mr.  FvAWLINS.  If  I  had  plenty  of  time,  I  should  like  to  read 
this  opinion  by  the  Supreme  Court,  delivered  by  Chief  Justice 
Davis,  I  refer  to  the  Milligan  case,  4  Wallace.  It  shows  why 
we  can  not  do  the  one  thing  as  to  a  person  not  in  the  military 
or  naval  service  in  a  district  or  State  where  there  is  no  inva- 
sion and  no  rebellion  and  why  we  can  do  it  under  a  different 
set  of  circumstances  as  to  a  person  who  is  a  prisoner  of  war  or 
who  is  in  the  military  or  naval  service,  and  therefore  subject  to 
military  discipline  and  military  law. 

Mr.  PLATT  of  Connecticut.  But  courts-martial  in  time  of 
war  try  persons  who  are  not  in  the  military  service;  try  citizens 
of  the  United  States  who  are  not  soldiers,  who  have  not  enlisted, 
who  have  not  signed  the  Articles  of  War,  and  try  them  without  a 
jury,  and  because  and  only  because,  as  I  understand  it,  the  Con- 

8693 


13 

stitution  provides  that  Congress  may  make  rules  for  the  regula- 
tion of  the  Army  and  Navy  for  their  government,  the  same  as  it 
provides  that  Congress  may  make  rules  for  the  government  of 

territory.  j,    -n         ^.i      -4- 

Mr  RVWLINS.  I  can  not  oppose  my  own  feehle  authority 
against  that  of  the  distinguished  Senator  from  Connecticut,  but 
I  do  feel  confidence  in  interposing  the  authority  of  the  Supreme 
Court  of  the  United  States.  I  read  what  tliey  say  upon  the  sub- 
ject, quoting  from  the  syllabus. 
Mr.  PLATT  of  Connecticut.     The    Senator  from    Ltah  will 

fi"d „  ^  ^-      .  -1. 

Mr.  RAWLINS.  "Will  the  Senator  from  Connecticut  permit 
me  to  complete  my  sentence?     The  court  saj-s: 

Military  commissions  organized  during  the  late  civil  war  in  a  State  not 
invaded  and  not  engaged  in  rebellion,  in  wliich  the  Federal  courts  were  open 
and  in  the  proper  and  unobstructed  exercise  of  their  pudieial  functiont..  had 
no  iurisdiction  to  try.  convict,  or  uonteuce  for  any  criminal  ottense  a  citizen 
who  was  neither  a  resident  of  a  reb3lliou3  State,  nor  a  prisoner  ot  war,  nor  a 
person  in  the  military  or  naval  servics.  And  Congress  can  not  impart  such 
authority. 
That  language  is  free  from  ambiguity.  ^    -,    .^,  n 

Mr.  PLATT  of  Connecticut.  The  Senator  will  find,  if  he  reads 
the  opinion,  that  Justice  Davis  puts  the  right  to  try  a  citizen  of 
the  United  States  by  ciurt-martial  without  jury  upon  the  clause 
in  the  Constitution  to  which  I  have  referred. 

Mr.  RAWLINS.  Of  course,  I  am  aware  of  that  proposition,  i 
quote  this  language  from  the  opinion: 

Time  has  proven  the  discernment  of  our  ancestors,  for  even  these  pro- 
visions— 

That  is,  the  safeguards  of  the  Constitution— 
expressed  in  such  plahi  English  words,  that  it  would  seem  the  Ingenuity  of 
man  could  not  evade  them,  are  now,  after  the  lapse  of  more  than  seventy 
years  sought  to  be  avoided.  Those  great  and  good  men  foresaw  that  troub- 
lous times  would  arise,  when  rulers  and  people  would  become  restive  under 
restraint  and  seek  by  sharp  and  decisive  measures  to  acconiplish  ends  deemed 
iust  and  proper,  and  that  the  principles  of  constitutional  liberty  would  be  in 
peril  unless  established  by  irrepealable  law.  The  history  of  the  woHd  had 
taught  them  that  what  was  done  in  the  past  might  bo  attempted  in  the  future. 
The  Constitution  of  the  United  States  is  a  law  for  rulers  and  people,  equally 
in  war  and  in  peace,  and  covers  with  the  shield  of  its  protection  all  classes  ol 
men,  at  all  times  and  under  all  circumstances. 

Mr.  President,  it  will  be  an  evil  day  for  this  country  when  those 
principles  thus  solemnly  announced  become  untrue.  That  is  a  suffi- 
cient answer  to  the  remarks  made  by  the  junior  Senator  from 
Massachusetts  [Mr.  Lodgej  and  reiterated  by  the  Senator  from 
New  York  [Mr.  Platt],  that  whenever  the  Constitution  stands 
in  the  way  of  accomplishing  any  temporary  expedient  or  purpose 
which  may  be  thouglit  proper  in  the  frenzy  of  a  temporary  ma- 
jority, the  Constitution  is  to  be  turned  to  one  side.  Ah,  if  it  is 
not  to  be  turned  to  one  side,  perhaps  they  would  change  it  with- 
out going  through  the  tedious  and  difficult  formalities  prescribed 
in  that  instrument  for  its  own  amendment.  ^    ,     ^     ^ 

Tlie  cases  to  which  I  have  alluded  are  monuments  of  the  tact 
that  arbitrary  power  possessed  by  vi^homsoever  anywhere  will  be 
abused.  It  has  been  abused  in  England  time  and  time  again  by 
every  sovereign  who  claimed  to  be  clothed  with  an  uncontrollable 
will  with  respect  to  the  liberties  and  properties  of  his  subjects. 
Time  and  time  again  I  have  seen  it  abused  witliin  the  limits  of 
the  United  States.  In  the  Snow  case  they  tried  to  convict  him 
time  and  time  again  and  punish  him  for  one  and  the  same  offense, 
contrary  to  the  provisions  that  for  the  same  public  offense  no  man 

3o93 


14 

shall  twice  be  put  in  jeopardy,  etc.  The  Reynolds  case,  the  Neil- 
sen  case,  the  Snow  case,  the  Milligan  case,  and  the  multitude  of 
cases  which  have  gone  to  the  Supreme  Court,  carried  there  by 
those  claiming  the  safeguards  of  our  Constitution,  and  which  have 
been  reversed'by  that  tribunal  for  their  violation,  jilainly  disclose 
that  it  is  unsafe  ever  to  break  down  the  barriers  to  the  exercise  of 
arbitrarj'  power. 

Mr.  President,  it  would  be  useless  for  me  to  undortalco  by 
further  reference  to  authorities  to  establish  the  proposition  which 
I  started  out  to  maintain:  First,  that  the  Constitution  proprio 
vigore  applies  to  the  Territories,  the  remotest  Territory  within 
our  jurisdiction,  and  is  there  a  vital  and  living  force,  never  to 
be  overridden  by  any  edict  of  any  Executive,  by  any  command 
of  any  military  leader,  or  by  the  concurrent  action  of  all  the  de- 
partments of  this  Government.  I  think  it  is  clear  that  an  act  of 
Congress  which  must  rest  for  its  validity  upon  the  Constitution 
can  not  give  the  Constitution  any  force  anj'where  which  it  would 
not  otherwise  possess. 

But  let  us  apply  these  principle:;  brieHy  to  the  situation  Vv'hich 
now  immediately  confronts  us  in  the  light  of  some  claims  which 
are  put  forth  here  by  distinguislied  Senators.  One  of  these  is  that 
we  will  so  adjust  ami  males  unequal  our  revenue  and  tariff  laws  as 
that  the  sugar  and  hemp,  the  products  of  the  inhabitants  of  the 
Philippine  Archipelago,  will  not  l;e  permitted  to  come  into  com- 
petition with  the  like  products  of  the  American  farmer. 

If  we  may  do  that,  we  can  pass  siuiilar  legislation  in  order  to 
prevent  the  wheat  grown  in  Oklahoma  from  coming  into  compe- 
tition with  the  wheat  grown  in  K;;nsa8  or  other  Stales  of  the 
American  Union.  Is  it  possible  that  there  is  vested  anywhere  in 
this  Government  power  to  make  such  discrin.iination  as  that 
against  inhabitants  and  citizens  owing  al'egiance  to  this  Govern- 
nient  and  entitled  to  the  reciprocal  benetits  of  its  equal  and  just 
laws— such  infamous  discrimination  between  a  citizen  of  Okla- 
homa and  one  in  the  State  of  Kansas  or  in  any  other  State?  Or 
may  we  prevent  the  competition  of  mineral  protlucts  of  New 
Mexico  and  Arizona  with  the  similar  products  of  Colorado  and 
Utah?  If  so,  we  are  to  override  the  interpretation  of  the  Consti- 
tution as  made  by  John  Marshall  and  which  has  prevailed  with- 
out question  from  that  moment  to  this.  Therefore  we  can  not, 
unless  we  override  the  barriers  of  the  Constitution,  shut  out  the 
products  of  the  meanest  of  our  citizens  owing  allegiance,  whoever 
they  may  be,  whether  upon  the  continent  or  an  island  of  the  sea 
10,000  miles  from  the  seat  of  government. 

Mr.  President,  another  contention  is  made  in  respect  to  the 
dark  inhabitant;)  of  those  distant  islands.  It  is  that  we,  not  as  a 
punishment  for  any  crime  of  which  they  have  been  duly  con- 
victed in  accordance  with  the  safeguards  and  provisions  of  the 
Constitiition,  may  deny  them  the  privilege  of  coming  from  their 
homes  into  the  States  or  visiting  the  capital  of  the  country  to 
which  they  owe  allegiance.  If  it  is  possible  to  do  that,  Mr.  Presi- 
dent, is  it  not  also  possible  for  us  to  say  to  the  inhabitants  of  a 
State,  "You  may  not  emigrate  to  a  Territory?"  If  we  may  do 
that,  wo  may  forbid  those  people  from  passing  from  one  island  to 
another;  and  if  we  may  do  that,  we  may  forbid  them  visiting 
their  neighbor's  house;  and  if  we  can  do  that,  not  as  a  punish- 
ment for  any  crime  of  which  they  have  been  duly  convicted,  may 
we  not  throw  them  down  into  that  Spanish  dungeon  described  by 
3t98 


15 

Senators,  there  to  await  the  incoming  tide  to  end  their  troubles 
and  put  them  beyond  the  reach  of  American  tyranny? 

Mr.  President,  what  do  we  want  the  Philippine  Islands  tor? 
Do  we  want  them  to  furnish  homes  for  our  own  people?  No.  Do 
we  want  them  to  furnish  an  outlet  for  our  surplus  labor?  The 
sturdy  American  workingman  could  not  live  in  that  climate,  com- 
peting with  the  meanest  of  the  Tagalos.  Do  we  want  them  to 
add  a  wholesome  element  to  our  population,  that  our  sons  may 
tind  wives  and  our  daughters  husbands?  The  blighting  curse  of 
tlie  Almighty  would  rest  upon  such  miscegination.  Do  we  want 
them  in  order  to  practice  upon  their  inhabitants  the  same  arts  of 
philauthropv  which,  applied  to  the  aboriginal  inhabitants  of 
this  continent,  have  led  to  their  exteviuination?  Humanity  says 
no.  Do  we  want  them  for  the  salce  of  their  trade  and  commerce? 
Already  the  spokesmen  of  the  dominant  Administration  are  seek- 
ing to  devise  unconstitutional  methods  for  intercepting  and  pre- 
venting such  traffic.  Do  we  want  them  in  order  to  send  hither 
swarms  of  officeholders,  carpetbaggers,  to  riot  among  them  like 
slimy  worms,  eating  out  their  substance?  Ah!  there  is  the  rub. 
But  for  this,  this  perplexing  problem  would  not  today  be  seriously 
confronting  the  American  people.  No,  there  is  no  conceivable 
good  which  they  can  bring  to  us.  Their  retention  bodes  nothing 
but  evil.  They" are  made  the  pretext  for  emasculating  our  free- 
dom, for  overriding  our  Constitution  and  breaking  down  the  safe- 
guards of  our  liberty.  ,     ,      ■,• 

Mr.  President,  it  is  said  that  we  must  keep  the  islands  to  dis- 
charge some  humane  duty  or  moral  obligation.  What  is  it? 
Those  people  rendered  us  aid,  it  is  said:  that  Aguinaldo  and  his 
chieftains  and  some  of  his  followers  rendered  us  aid  in  the  capture 
of  Manila.  We  with  our  Army  and  Navy  rendered  them  aid  in 
their  warfare  against  Spain.  Suppose  we  set  off  our  obligations 
against  theirs,  balance  the  account,  and  let  it  go  at  that?  That 
will  be  satisfactorv  to  them;  it  ought  to  be  satisfactory  to  us. 

Mr.  President,  f  have  had  great  difficulty  in  respect  to  the  ques- 
tion which  is  soon  to  come  before  the  Senate  for  a  vote— the 
ratification  of  the  peace  treaty.  I  and  the  American  people  want 
to  end  this  war.  There  is  no  reason  why  it  should  be  protracted 
another  moment. 

But  some  of  us  are  confronted  with  another  suggestion  made  by 
the  Senator  from  Montana,  hinted  at  by  other  Senators,  suggested 
from  sources  which  would  seem  to  be  authoritative,  deriving  then- 
strength  as  thevcome  emanating  from  the  Executive  authority  of 
this  nation.  What  is  it?  While  the  armistice  with  Spain  is  pend- 
ing, while  the  Filipinos  owe  allegiance  to  the  Spanish  Kingdom, 
we  are  not  in  a  position  where  we  can  discharge  our  obligations 
to  them  with  shot  and  shell,  not  directed  against  the  Spaniard, 
but  against  our  former  ally;  that  we  must  get  rid  of  this  treaty 
and  end  that  situation,  so  that  our  guns,  once  directed  toward 
Spain,  may  be  turned  upon  them;  and  what  for? 

Is  the  ratification  of  the  treaty  to  end  one  war  to  be  the  incep- 
tion of  another,  the  end  of  which  no  man  can  foresee,  and  against 
people  who  are  absolutely  guiltless  in  sin  as  against  us,  who  have 
expressed  their  gratitude  for  the  aid  which  we  have  rendered 
them— guilty  of  no  crime  under  the  sun  except  the  desire  and 
aspiration  which  moved  our  ancestors,  the  desire  and  aspiration 
to  be  free?  Ah,  Mr.  President,  that  is  the  condition,  and  it  is  a 
serious  problem,  and  I  confess  that  while  I  should  like  to  end  one 

3698 


16 

war,  I  do  not  want  that  to  be  the  incexition  of  another  under  those 
circumstances  and  without  any  excuse  or  justification  under  the 
sun. 

Mr.  President,  there  have  been  many  undulations  in  the  strange 
and  wonderful  career  of  humanity.  The  giory  of  Egypt  was 
eclipsed  in  thr;  progress  and  development  of  the  barbarous  tribes 
of  Greece.  Tiie  plowshare  coursed  through  the  site  of  ruined 
Carthage,  once  the  proud  mistress  of  the  seas  and  presiding  over 
the  destinies  of  commerce.  The  northern  barbarian,  overrun  by 
the  legions  of  Rome,  afterwards  wore  the  purple  and  occupied  the 
imperial  throne.  There  is  a  descending  as  well  as  a  rising  scale 
in  the  life  of  nations.  A  decadence  may  set  in.  No  people,  how- 
ever proud  or  strong,  need  flatter  themselves  that  they  are  beyond 
the  reach  of  vicissitude.  Though  they  be,  like  the  Ethiopians  of 
old,  the  favorite  associates  of  the  gods,  they  may  descend  to  the 
abasement  and  turpitude  of  slaves.  We  can  not  afford  to  go  even 
halfway  down  to  the  Asiatic  level  in  order  to  proportionately 
Vipiitt  their  civilization.  Wo  have  enacted  laws  which  stand  like 
cherubim  with  llaming  sword  at  the  gateways  of  the  Republic  to 
drive  back  the  hordes  of  the  dark  and  degenerate  races  of  the 
East,  lest  they  may  enter  in  to  infect  and  to  degrade  us. 

Whatever  may  happen,  Mr.  President,  let  it  be  that  the  fathers 
who  erected  this  Republic  "reared  a  monument  more  enduring 
than  brass,  higher  than  the  regal  structure  of  pyramids,  which 
may  not  be  destroyed  by  the  corroding  storm,  the  fury  of  the 
northern  wind,  bv  an  innumerable  series  of  years  or  the  flight  of 
time.''  Ihe  Senator  from  Connecticut  |Mr.  Platt]  twitted  the 
Senator  from  Massachusetts  [Mr.  HoAit]  with  seeing  constitu- 
tional obstacles,  lions  in  the  pathway  leading  to  the  House  Beau- 
tiful. Would  the  Senator  from  Connecticut  have  us,  like  Samson 
of  old,  destroy  the  lion  at  the  gate  in  order  that  we  might  enter 
in  to  wed  the  daughter  of  the  Philistine?  It  behooves  us  to  take 
warning  by  that  example,  lest  we,  too,  by  such  "benevolent 
assimilation,"  have  our  locks  shorn  and  the  strength  of  our  insti- 
tutions taken  away. 
2C03 

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